United States District Court, W.D. Virginia, Danville Division
SADIE MAE HOLLEY, by and through her Mother and Next Friend, Sara B. Holley, et al., Plaintiffs,
CVS CAREMARK CORPORATION, et al., Defendants.
Elizabeth K. Dillon United States District Judge.
Sadie Mae Holley (Sadie), a minor suing by and through her
mother and next friend, plaintiff Sara B. Holley (Ms.
Holley), moves for default judgment against defendants CVS
Caremark Corporation, CVS Pharmacy, Inc., Virginia CVS
Pharmacy, LLC, and CVS Pharmacy, Store #3793, Hook-SupeRx,
LLC (collectively, CVS). (Dkt. No. 28.) Sadie also moves, in
the alternative, for an extension of time to disclose expert
witnesses. In response, CVS moves for leave to file a later
answer. (Dkt. No. 34.) The court does not believe that an
oral hearing would be helpful in deciding these motions;
thus, it will rule without one. W.D. Va. Civ. R. 11(b).
December 30, 2015, Sadie and Ms. Holley filed this action in
a Virginia state court. Sadie alleges a claim for negligence,
and Ms. Holley alleges a claim for intentional infliction of
emotional distress. On April 4, 2016, CVS removed the action
to this court and, two days later, moved for leave to file a
late responsive pleading. The court granted the motion,
giving CVS until April 8 to file a responsive pleading. On
April 7, CVS moved to dismiss Mrs. Holley’s claim under
Federal Rule of Civil Procedure 12(b)(6). It did not,
however, file a responsive pleading to Sadie’s claim.
The court denied CVS’s motion to dismiss on August 3.
CVS did not file a responsive pleading to her claim on or
before April 8, Sadie contends that it is in default. To
support her argument, Sadie relies on a nearly forty-year-old
case from the Eastern District of Michigan-Gerlach v.
Michigan Bell Telephone Company, 448 F.Supp. 1168 (E.D.
Mich. 1978). There, the court held that moving to dismiss
fewer than all the claims of a complaint under Rule 12(b)(6)
does not toll the time for responding to the remaining
claims. Id. at 1174. But the Gerlach court
is on a lonely island: Virtually every other court that has
considered the issue has rejected the Gerlach
court’s rule, holding instead that a Rule 12(b)(6)
motion to dismiss does suspend the time to respond
to any unchallenged claims. See, e.g., Ideal
Instruments, Inc. v. Rivard Instruments, Inc., 434
F.Supp.2d 598, 638 (N.D. Iowa 2006) (collecting cases).
Indeed, it appears that just one court over the past 30-plus
years has chosen to follow the Gerlach court, and
that court was not convinced that the Gerlach
court’s rule applies in all cases. Coca-Cola Fin.
Corp. v. Pure Tech Plastics LLC, No. 1:12-cv-00949, 2012
U.S. Dist. LEXIS 191395, at *2 (N.D.Ga. July 9, 2012)
(“Although there may be some instances when a partial
motion to dismiss extends the time to answer all counts, this
case does not present such an instance.”)
the Fourth Circuit has not yet weighed in on this issue,
several other district courts within the Fourth Circuit have,
and they have all reached the opposite conclusion as the
Gerlach court. Take, for instance, the Eastern
District of Virginia’s decision in Godlewski v.
Affiliated Computer Services, Inc., 210 F.R.D. 571 (E.D.
Va. 2002). There, the court held that “Rule 12(b)(6)
motions . . . expand time for answering the entire pleading
until 10 [now 14] days after receiving notice of the
Court’s resolution of the Rule 12(b)(6) motion.”
Id. at 573; accord Justice v.
Dimon, No. 3:10-cv-00413, 2011 U.S. Dist. LEXIS 60127,
at *6 (W.D. N.C. June 6, 2011). In reaching this conclusion,
the court rejected the Gerlach court’s rule
and instead adopted the majority view, explaining:
This Court chooses to follow the majority approach. As other
courts have noted, if the courts require a defendant to
answer in piecemeal fashion, a procedural thicket would
emerge. Thorny questions would arise as to how the case
should proceed pending resolution of the motion. In the
interests of efficiency for all parties, including the
courts, it is best to stall the proceedings on all counts
until after the court rules on the Rule 12(b)(6) motion. In
addition, any potential abuses or dilatory tactics which the
minority approach seeks to prevent can also be guarded
against under the majority approach through the use of Rule
11 sanctions to deter abuse.
Godlewski, 210 F.R.D. at 572-73 (internal quotation
marks and citation omitted).
the Godlewski court, this court is persuaded that
the majority view is correct and thus adopts it here.
Consequently, when CVS filed its motion to dismiss Ms.
Holley’s claim under Rule 12(b)(6), its time to respond
to Sadie’s claim was suspended until the court ruled on
the motion. After such a ruling, CVS would then have 14 days
to respond to Sadie’s claim. Fed.R.Civ.P. 12(a)(4).
14 days have not yet passed since the court ruled on
CVS’s motion to dismiss Ms. Holley’s claim, CVS
is not in default on Sadie’s claim. Accordingly, the
court will deny Sadie’s motion for default judgment and
deny CVS’s motion for leave to file a late answer as
respect to her alternative motion for an extension of time to
disclose expert witnesses, Sadie does not adequately explain
why such relief is necessary at this time. The court will
thus deny the motion without prejudice. If she continues to
believe that the expert-disclosure deadline in the scheduling
order needs to be extended after receiving this decision,
then she may refile the motion with an adequate explanation,
and it will be referred to ...